MISSISSIPPI LEGISLATURE
2013 Regular Session
To: Judiciary, Division B
By: Senator(s) Tollison
AN ACT TO AMEND SECTIONS 11-7-165, 37-29-232, 37-33-157, 37-115-41, 43-1-4, 43-1-55, 43-11-13, 43-53-9, 45-33-23, 45-33-36, 45-33-47, 45-39-13, 47-7-3 AND 97-3-7, MISSISSIPPI CODE OF 1972, TO CHANGE THE TERM "VULNERABLE ADULT" TO THE TERM "VULNERABLE PERSON" IN CONFORMITY WITH THE CHANGE IN TERMINOLOGY ENACTED BY HOUSE BILL 640, 2010 REGULAR SESSION; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 11-7-165, Mississippi Code of 1972, is amended as follows:
11-7-165. (1) In a civil
action where it is proven that a person took property having a value of Two
Hundred Fifty Dollars ($250.00) or more belonging to a vulnerable * * * person by conversion,
embezzlement, extortion, theft or fraud without the owner's consent, or
obtained the owner's consent by intimidation, deception, undue influence or by
misusing a position of trust or a confidential relationship with the owner,
then whether the action is to recover the property or damages in lieu thereof,
or both, damages shall be recoverable up to three (3) times the amount of the
monetary damages or value of the property embezzled, converted or otherwise
stolen, in addition to any other damages.
(2) For purposes of this section, "position of trust" shall include, but not be limited to, a person who:
(a) Is named the
attorney-in-fact in a power of attorney, whether executed before or after the * * * person became vulnerable;
(b) Has assumed a duty
to provide care to the vulnerable * * * person;
(c) Is in a fiduciary
relationship with the vulnerable * * * person, including a de facto
guardian or de facto conservator; or
(d) Is a joint tenant
or tenant in common with the vulnerable * * * person.
(3) "Vulnerable * * * person" shall have the
meaning defined in Section 43-47-5, Mississippi Code of 1972.
(4) Civil remedies provided under this section shall be supplemental and cumulative, and not exclusive of other remedies afforded under any other law. Damages awarded under this section are remedial and not punitive, and do not limit and are not limited by any criminal action or any other provision of law. Any civil damages paid by the civil defendant shall reduce the amount such defendant, upon conviction, may be ordered to pay in restitution, and any restitution paid under a criminal penalty shall reduce any civil damages owed.
(5) The cause of action, the right to bring a cause of action, or the right to seek treble damages pursuant to this section shall not be limited or affected by the death of the owner.
SECTION 2. Section 37-29-232, Mississippi Code of 1972, is amended as follows:
37-29-232. (1) For the purposes of this section:
(a) "Health care professional/vocational technical academic program" means an academic program in medicine, nursing, dentistry, occupational therapy, physical therapy, social services, nutrition services, speech therapy, or other allied-health professional whose purpose is to prepare professionals to render patient care services.
(b) "Health care professional/vocational technical student" means a student enrolled in a health care professional/vocational technical academic program.
(2) The dean or director of the health care professional/vocational technical academic program is authorized to ensure that criminal history record checks and fingerprinting are obtained on their students before the students begin any clinical rotation in a licensed health care entity and that the criminal history record check information and registry checks are on file at the academic institution. In order to determine the student's suitability for the clinical rotation, the student shall be fingerprinted. If no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety, the Department of Health, or any other legally authorized entity to the FBI for a national criminal history record check. The fee for the fingerprinting and criminal history record check shall be paid by the applicant, not to exceed Fifty Dollars ($50.00); however, the academic institution in which the student is enrolled, in its discretion, may elect to pay the fee for the fingerprinting and criminal history record check on behalf of any applicant. Under no circumstances shall the academic institution representative or any individual other than the subject of the criminal history record checks disseminate information received through any such checks except insofar as required to fulfill the purposes of this section.
(3) If the fingerprinting
or criminal history record checks disclose a felony conviction, guilty plea or
plea of nolo contendere to a felony of possession or sale of drugs, murder,
manslaughter, armed robbery, rape, sexual battery, sex offense listed in
Section 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification
of lust or aggravated assault, or felonious abuse and/or battery of a
vulnerable * * *
person that has not been reversed on appeal or for which a pardon has
not been granted, the student shall not be eligible to be admitted to the
health care professional/vocational technical academic program of study. Any
preadmission agreement executed by the health care professional/vocational
technical academic program shall be voidable if the student receives a
disqualifying criminal history record check. However, the administration of
the health care professional/vocational technical academic program may, in its
discretion, allow any applicant aggrieved by the admissions decision under this
section to appear before an appeals committee or before a hearing officer
designated for that purpose, to show mitigating circumstances that may exist
and allow the student to be admitted to or continue in the program of study.
The health care professional/vocational technical academic program may grant
waivers for those mitigating circumstances, which shall include, but not be
limited to: (a) age at which the crime was committed; (b) circumstances
surrounding the crime; (c) length of time since the conviction and criminal
history since the conviction; (d) work history; (e) current employment and
character references; (f) other evidence demonstrating the ability of the
student to perform the clinical responsibilities competently and that the
student does not pose a threat to the health or safety of patients in the
licensed health care entities in which they will be conducting clinical
experiences. The health care professional/vocational technical academic
program shall provide assurance to the licensed health care entity in which the
clinical rotation is planned that the results of a health care
professional/vocational technical student's criminal history record check would
not prohibit the student from being able to conduct his or her clinical
activities in the facility, institution, or organization. The criminal history
record check shall be valid for the course of academic study, provided that
annual disclosure statements are provided to the health care
professional/vocational technical academic program regarding any criminal
activity that may have occurred during the student's tenure with the health
care professional/vocational technical academic program. The criminal history
record check may be repeated at the discretion of the health care
professional/vocational technical academic program based on information
obtained during the annual disclosure statements. In extenuating
circumstances, if a criminal history record check is initiated and the results
are not available at the time the clinical rotation begins, the academic
institution in which the student is enrolled, at its discretion, may require a
signed affidavit from the student assuring compliance with this section. The
affidavit will be considered void within sixty (60) days of its signature.
(4) Criminal history record checks that are done as part of the requirements for participation in the health care professional/vocational technical academic program may not be used for any other purpose than those activities associated with their program of study. Students who may be employed as health care professionals outside of their program of study may be required to obtain additional criminal history record checks as part of their employment agreement.
(5) No health care professional/vocational technical academic program or academic program employee shall be held liable in any admissions discrimination suit in which an allegation of discrimination is made regarding an admissions decision authorized under this section.
SECTION 3. Section 37-33-157, Mississippi Code of 1972, is amended as follows:
37-33-157. The Department of Rehabilitation Services shall provide the rehabilitation services authorized by law and by the rules, regulations and policies of the board to every individual determined to be eligible therefor, and in carrying out the purposes of this chapter the department is authorized, when consistent with the rules, regulations and policies of the State Board of Rehabilitation Services:
(a) To expend funds received either by appropriation or directly from federal or private sources.
(b) To cooperate with other departments, agencies and institutions, both public and private, in providing the services authorized by this chapter to disabled individuals, in studying the problems involved therein, and in establishing, developing and providing in conformity with the purposes of this chapter, such programs, facilities and services as may be necessary or desirable.
(c) To enter into reciprocal agreements with other states to provide for the services authorized by this chapter to residents of the states concerned.
(d) To conduct research and compile statistics relating to the provision of services to or the need of services by disabled individuals.
(e) To enter into contractual arrangements with the federal government and with other authorized public agencies or persons for performance of services related to rehabilitation.
(f) To contract with schools, hospitals and other agencies, and with doctors, optometrists, nurses, technicians and other persons, for training, physical restoration, transportation and other rehabilitation services.
(g) To take such action as may be necessary to enable the department to apply for, accept and receive for the state and its residents the full benefits available under the federal Vocational Rehabilitation Act, and any amendments thereto, and under any other federal legislation or program having as its purpose the providing of, improvement or extension of, vocational rehabilitation services.
(h) To establish an Office on the Deaf and Hard of Hearing to provide services and activities authorized under Section 37-33-171.
(i) To own in the name of the State of Mississippi certain real property described in Section 7 of Chapter 512, Laws of 2005, and to construct, renovate or repair under the supervision of the Department of Finance and Administration any buildings on such property.
(j) To borrow money from the Mississippi Development Bank or other financial institution for the purpose of construction, repair and renovation, furnishing or equipping facilities owned or under the supervision of the department; however, the department shall certify the following to the Mississippi Development Bank or other financial institution prior to entering into any loan:
(i) The available revenue that the department intends to utilize to repay the loan; and
(ii) That the department does not intend to request an additional appropriation from state source funding to pay debt service on any loan entered into under this paragraph.
(k) To fingerprint and
perform a current criminal history record check, child abuse registry check,
sex offender registry check, and vulnerable * * * person abuse or neglect check on
any person performing services for or on behalf of the department including,
but not limited to, every employee, volunteer, contractual worker, and
independent contractor.
(l) To use the results of the fingerprinting and background checks performed under paragraph (k) for the purposes of employment decisions and/or actions and service provision to consumers of the department's services. The department and its agents, officers, employees, attorneys and representatives shall be exempt from liability for any findings, recommendations or actions taken under this paragraph.
SECTION 4. Section 37-115-41, Mississippi Code of 1972, is amended as follows:
37-115-41. (1) For the purposes of this section:
(a) "Applicant" means any person who is applying to become an employee of UMMC.
(b) "Employee" means an employee, contractor, temporary worker or consultant.
(c) "UMMC" means the University of Mississippi Medical Center.
(2) The University of
Mississippi Medical Center shall fingerprint and perform a criminal history
record check on all new employees that work in or provide direct patient care.
In addition, UMMC shall perform a disciplinary check with the professional
licensing agency of the employee, if any, to determine if any disciplinary
action has been taken against the employee by that agency. Except as otherwise
provided in this section, no employee of UMMC hired on or after July 1, 2004,
shall be permitted to provide direct patient care until the results of the
criminal history record check have revealed no disqualifying record or the
employee has been granted a waiver. In order to determine the applicant's
suitability for employment, the applicant shall be fingerprinted. Fingerprints
shall be submitted to the Department of Public Safety by UMMC via scanning or
other electronic method, with the results processed through the Department of
Public Safety's Criminal Information Center. If no disqualifying record is
identified at the state level, the applicant's fingerprints shall be forwarded
by the Department of Public Safety to the Federal Bureau of Investigation for a
national criminal history record check. If the criminal history record check
discloses a felony conviction, guilty plea or plea of nolo contendere to a
felony of possession or sale of drugs, murder, manslaughter, armed robbery,
rape, sexual battery, sex offense listed in Section 45-33-23(g), child abuse,
arson, grand larceny, burglary, gratification of lust or aggravated assault, or
felonious abuse and/or battery of a vulnerable * * * person that has not been reversed
on appeal or for which a pardon has not been granted, the applicant shall not
be eligible to be employed at UMMC.
(3) Notwithstanding the provisions of subsection (2) of this section, any such applicant may be employed on a temporary basis pending the results of the criminal history record check. Any employment contract with an applicant during the application process shall be voidable upon receipt of a disqualifying criminal history record check if no waiver is granted under subsection (4) of this section.
(4) UMMC may, in its discretion, allow any applicant aggrieved by an employment decision under this section to appear before the UMMC hiring officer, or his or her designee, to show mitigating circumstances that may exist and allow the applicant to be employed at UMMC. UMMC, upon report and recommendation of the hiring officer, may grant waivers for those mitigating circumstances, which shall include, but not be limited to: (a) age at which the crime was committed; (b) circumstances surrounding the crime; (c) length of time since the conviction and criminal history since the conviction; (d) work history; (e) current employment and character references; and (f) other evidence demonstrating the ability of the individual to perform the employment responsibilities competently and that the individual does not pose a threat to the health or safety of the patients admitted to UMMC.
(5) Upon the receipt of an applicant's criminal history record check that reveals no disqualifying event, UMMC shall, within two (2) weeks of the notification of no disqualifying event, provide the applicant with a notarized letter signed by the vice chancellor, or his or her authorized designee, confirming the applicant's suitability for employment based on his or her criminal history record check. An applicant or employee may use that letter for a period of two (2) years from the date of the letter to seek employment at any covered entity, as defined in Section 43-11-13(5), without the necessity of an additional criminal history record check under Section 43-11-13(5). Any covered entity presented with the letter may rely on the letter for a period of two (2) years from the date of the letter without having to conduct or have conducted a criminal history record check on the applicant or employee.
(6) UMMC may charge a fee not to exceed Fifty Dollars ($50.00) for fingerprinting applicants, students, employees, contractors, consultants, outside agency personnel, visiting faculty, researchers or any other individual(s) that may provide direct services to UMMC.
(7) UMMC and its agents, officers, employees, attorneys and representatives shall be presumed to be acting in good faith for any employment decision or action taken under this section. The presumption of good faith may be overcome by a preponderance of the evidence in any civil action. UMMC or its agents, officers, employees, attorneys and representatives shall not be held liable in any employment decision or action based in whole or in part on compliance with or attempts to comply in good faith with the requirements of this section.
SECTION 5. Section 43-1-4, Mississippi Code of 1972, is amended as follows:
43-1-4. The Department of Human Services shall have the following powers and duties:
(a) To provide basic services and assistance statewide to needy and disadvantaged individuals and families.
(b) To promote integration of the many services and programs within its jurisdiction at the client level thus improving the efficiency and effectiveness of service delivery and providing easier access to clients.
(c) To develop a statewide comprehensive service delivery plan in coordination with the Board of Health, the Board of Mental Health, and the Department of Finance and Administration. Such plan shall be developed and presented to the Governor by January 1, 1990.
(d) To employ personnel and expend funds appropriated to the department to carry out the duties and responsibilities assigned to the department by law.
(e) To fingerprint and
perform a criminal history record check on every employee or volunteer (i) who
has direct access to clients of the department who are children or vulnerable * * * persons, or (ii) who is in a
position of fiduciary responsibility. Every such employee and volunteer shall
provide a valid current social security number and/or driver's license
number which shall be furnished to conduct the criminal history record check.
If no disqualifying record is identified at the state level, fingerprints shall
be forwarded to the Federal Bureau of Investigation for a national criminal
history record check.
SECTION 6. Section 43-1-55, Mississippi Code of 1972, is amended as follows:
43-1-55. (1) The Office of Family and Children's Services and the Division of Aging and Adult Services shall devise formal standards for employment as a family protection worker and as a family protection specialist within their respective offices and for service delivery designed to measure the quality of services delivered to clients, as well as the timeliness of services. Each family protection worker and family protection specialist shall be assessed annually by a supervisor who is a licensed social worker who is knowledgeable in the standards promulgated. The standards devised by each office shall be applicable to all family protection workers and family protection specialists working under that office.
(2) The Office of Family and Children's Services shall devise formal standards for family protection workers of the Department of Human Services who are not licensed social workers. Those standards shall require that:
(a) In order to be employed as a family protection worker, a person must have a bachelor's degree in either psychology, sociology, nursing, family studies, or a related field, or a graduate degree in either psychology, sociology, nursing, criminal justice, counseling, marriage and family therapy or a related field. The determination of what is a related field shall be made by certification of the State Personnel Board; and
(b) Before a person may provide services as a family protection worker, the person shall complete four (4) weeks of intensive training provided by the training unit of the Office of Family and Children's Services, and shall take and receive a passing score on the certification test administered by the training unit upon completion of the four-week training. Upon receiving a passing score on the certification test, the person shall be certified as a family protection worker by the Department of Human Services. Any person who does not receive a passing score on the certification test shall not be employed or maintain employment as a family protection worker for the department. Further, a person, qualified as a family protection worker through the procedures set forth above, shall not conduct forensic interviews of children until the worker receives additional specialized training in child forensic interview protocols and techniques by a course or curriculum approved by the Department of Human Services to be not less than forty (40) hours.
(3) For the purpose of
providing services in child abuse or neglect cases, youth court proceedings,
vulnerable * * * person
cases, and such other cases as designated by the Executive Director of Human
Services, the caseworker or service provider shall be a family protection
specialist or a family protection worker whose work is overseen by a family
protection specialist who is a licensed social worker.
(4) The Department of Human Services and the Office of Family and Children's Services shall seek to employ and use family protection specialists to provide the services of the office, and may employ and use family protection workers to provide those services only in counties in which there is not a sufficient number of family protection specialists to adequately provide those services in the county.
(5) (a) There is created a Training and Testing Advisory Council to review the department's program of training and testing of family protection workers and to make recommendations pertaining to the program to the department. The advisory council shall be composed of the following ten (10) members: two (2) employees of the department appointed by the Executive Director of Human Services, including one (1) representative of the Office of Family and Children's Services and one (1) representative of the Division of Aging and Adult Services; the Chairman of the Consortium of Accredited Schools of Social Work in Mississippi; and the executive director or a board member of a professional association or licensing board for each field of study named in subsection (2)(a) of this section, as follows: the Mississippi Chapter of the National Association of Social Workers; a marriage and family therapist who is a member of the Board of Examiners for Social Workers and Marriage and Family Therapists, to be selected by the four (4) members of the board of examiners who are marriage and family therapists; the Mississippi Nurses' Association; the Mississippi Prosecutors Association; the Mississippi Counseling Association; the Mississippi Psychological Association; and an officer of the Alabama-Mississippi Sociological Association who is a Mississippi resident elected by the executive committee of the association. The executive director of each association (excluding the Alabama-Mississippi Sociological Association) and chairman of the consortium may designate an alternate member to serve in his stead on the advisory council. Members of the advisory council shall serve without salary or per diem.
(b) A majority of the advisory council members shall select from their membership a chairperson to preside over meetings and a vice chairperson to preside in the absence of the chairperson or when the chairperson is excused. The advisory council shall adopt procedures governing the manner of conducting its business. A majority of the members shall constitute a quorum to do business.
(6) This section and Section 43-27-107, Mississippi Code of 1972, shall stand repealed on July 1, 2015.
SECTION 7. Section 43-11-13, Mississippi Code of 1972, is amended as follows:
43-11-13. (1) The licensing agency shall adopt, amend, promulgate and enforce such rules, regulations and standards, including classifications, with respect to all institutions for the aged or infirm to be licensed under this chapter as may be designed to further the accomplishment of the purpose of this chapter in promoting adequate care of individuals in those institutions in the interest of public health, safety and welfare. Those rules, regulations and standards shall be adopted and promulgated by the licensing agency and shall be recorded and indexed in a book to be maintained by the licensing agency in its main office in the State of Mississippi, entitled "Rules, Regulations and Minimum Standards for Institutions for the Aged or Infirm" and the book shall be open and available to all institutions for the aged or infirm and the public generally at all reasonable times. Upon the adoption of those rules, regulations and standards, the licensing agency shall mail copies thereof to all those institutions in the state that have filed with the agency their names and addresses for this purpose, but the failure to mail the same or the failure of the institutions to receive the same shall in no way affect the validity thereof. The rules, regulations and standards may be amended by the licensing agency, from time to time, as necessary to promote the health, safety and welfare of persons living in those institutions.
(2) The licensee shall keep posted in a conspicuous place on the licensed premises all current rules, regulations and minimum standards applicable to fire protection measures as adopted by the licensing agency. The licensee shall furnish to the licensing agency at least once each six (6) months a certificate of approval and inspection by state or local fire authorities. Failure to comply with state laws and/or municipal ordinances and current rules, regulations and minimum standards as adopted by the licensing agency, relative to fire prevention measures, shall be prima facie evidence for revocation of license.
(3) The State Board of Health shall promulgate rules and regulations restricting the storage, quantity and classes of drugs allowed in personal care homes and adult foster care facilities. Residents requiring administration of Schedule II Narcotics as defined in the Uniform Controlled Substances Law may be admitted to a personal care home. Schedule drugs may only be allowed in a personal care home if they are administered or stored utilizing proper procedures under the direct supervision of a licensed physician or nurse.
(4) (a) Notwithstanding any determination by the licensing agency that skilled nursing services would be appropriate for a resident of a personal care home, that resident, the resident's guardian or the legally recognized responsible party for the resident may consent in writing for the resident to continue to reside in the personal care home, if approved in writing by a licensed physician. However, no personal care home shall allow more than two (2) residents, or ten percent (10%) of the total number of residents in the facility, whichever is greater, to remain in the personal care home under the provisions of this subsection (4). This consent shall be deemed to be appropriately informed consent as described in the regulations promulgated by the licensing agency. After that written consent has been obtained, the resident shall have the right to continue to reside in the personal care home for as long as the resident meets the other conditions for residing in the personal care home. A copy of the written consent and the physician's approval shall be forwarded by the personal care home to the licensing agency.
(b) The State Board of Health shall promulgate rules and regulations restricting the handling of a resident's personal deposits by the director of a personal care home. Any funds given or provided for the purpose of supplying extra comforts, conveniences or services to any resident in any personal care home, and any funds otherwise received and held from, for or on behalf of any such resident, shall be deposited by the director or other proper officer of the personal care home to the credit of that resident in an account that shall be known as the Resident's Personal Deposit Fund. No more than one (1) month's charge for the care, support, maintenance and medical attention of the resident shall be applied from the account at any one time. After the death, discharge or transfer of any resident for whose benefit any such fund has been provided, any unexpended balance remaining in his personal deposit fund shall be applied for the payment of care, cost of support, maintenance and medical attention that is accrued. If any unexpended balance remains in that resident's personal deposit fund after complete reimbursement has been made for payment of care, support, maintenance and medical attention, and the director or other proper officer of the personal care home has been or shall be unable to locate the person or persons entitled to the unexpended balance, the director or other proper officer may, after the lapse of one (1) year from the date of that death, discharge or transfer, deposit the unexpended balance to the credit of the personal care home's operating fund.
(c) The State Board of Health shall promulgate rules and regulations requiring personal care homes to maintain records relating to health condition, medicine dispensed and administered, and any reaction to that medicine. The director of the personal care home shall be responsible for explaining the availability of those records to the family of the resident at any time upon reasonable request.
(d) This subsection (4) shall stand repealed on June 30, 2014.
(5) (a) For the purposes of this subsection (5):
(i) "Licensed entity" means a hospital, nursing home, personal care home, home health agency, hospice or adult foster care facility;
(ii) "Covered entity" means a licensed entity or a health care professional staffing agency;
(iii) "Employee" means any individual employed by a covered entity, and also includes any individual who by contract provides to the patients, residents or clients being served by the covered entity direct, hands-on, medical patient care in a patient's, resident's or client's room or in treatment or recovery rooms. The term "employee" does not include health care professional/vocational technical students, as defined in Section 37-29-232, performing clinical training in a licensed entity under contracts between their schools and the licensed entity, and does not include students at high schools located in Mississippi who observe the treatment and care of patients in a licensed entity as part of the requirements of an allied-health course taught in the high school, if:
1. The student is under the supervision of a licensed health care provider; and
2. The student has signed an affidavit that is on file at the student's school stating that he or she has not been convicted of or pleaded guilty or nolo contendere to a felony listed in paragraph (d) of this subsection (5), or that any such conviction or plea was reversed on appeal or a pardon was granted for the conviction or plea. Before any student may sign such an affidavit, the student's school shall provide information to the student explaining what a felony is and the nature of the felonies listed in paragraph (d) of this subsection (5).
However, the health care professional/vocational technical academic program in which the student is enrolled may require the student to obtain criminal history record checks under the provisions of Section 37-29-232.
(b) Under regulations promulgated by the State Board of Health, the licensing agency shall require to be performed a criminal history record check on (i) every new employee of a covered entity who provides direct patient care or services and who is employed on or after July 1, 2003, and (ii) every employee of a covered entity employed before July 1, 2003, who has a documented disciplinary action by his or her present employer. In addition, the licensing agency shall require the covered entity to perform a disciplinary check with the professional licensing agency of each employee, if any, to determine if any disciplinary action has been taken against the employee by that agency.
Except as otherwise provided
in paragraph (c) of this subsection (5), no such employee hired on or after
July 1, 2003, shall be permitted to provide direct patient care until the
results of the criminal history record check have revealed no disqualifying
record or the employee has been granted a waiver. In order to determine the
employee applicant's suitability for employment, the applicant shall be
fingerprinted. Fingerprints shall be submitted to the licensing agency
from scanning, with the results processed through the Department of Public
Safety's Criminal Information Center. If no disqualifying record is identified
at the state level, the fingerprints shall be forwarded by the Department of Public
Safety to the Federal Bureau of Investigation for a national criminal history
record check. The licensing agency shall notify the covered entity of the
results of an employee applicant's criminal history record check. If the
criminal history record check discloses a felony conviction, guilty plea or
plea of nolo contendere to a felony of possession or sale of drugs, murder,
manslaughter, armed robbery, rape, sexual battery, sex offense listed in
Section 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification
of lust or aggravated assault, or felonious abuse and/or battery of a
vulnerable * * *
person that has not been reversed on appeal or for which a pardon has
not been granted, the employee applicant shall not be eligible to be employed
by the covered entity.
(c) Any such new employee applicant may, however, be employed on a temporary basis pending the results of the criminal history record check, but any employment contract with the new employee shall be voidable if the new employee receives a disqualifying criminal history record check and no waiver is granted as provided in this subsection (5).
(d) Under regulations
promulgated by the State Board of Health, the licensing agency shall require
every employee of a covered entity employed before July 1, 2003, to sign an
affidavit stating that he or she has not been convicted of or pleaded guilty or
nolo contendere to a felony of possession or sale of drugs, murder,
manslaughter, armed robbery, rape, sexual battery, any sex offense listed in
Section 45-33-23(g), child abuse, arson, grand larceny, burglary, gratification
of lust, aggravated assault, or felonious abuse and/or battery of a vulnerable * * * person, or that any such
conviction or plea was reversed on appeal or a pardon was granted for the
conviction or plea. No such employee of a covered entity hired before
July 1, 2003, shall be permitted to provide direct patient care until the
employee has signed the affidavit required by this paragraph (d). All such
existing employees of covered entities must sign the affidavit required by this
paragraph (d) within six (6) months of the final adoption of the regulations
promulgated by the State Board of Health. If a person signs the affidavit
required by this paragraph (d), and it is later determined that the person
actually had been convicted of or pleaded guilty or nolo contendere to any of
the offenses listed in this paragraph (d) and the conviction or plea has not
been reversed on appeal or a pardon has not been granted for the conviction or
plea, the person is guilty of perjury. If the offense that the person was
convicted of or pleaded guilty or nolo contendere to was a violent offense, the
person, upon a conviction of perjury under this paragraph, shall be punished as
provided in Section 97-9-61. If the offense that the person was convicted of
or pleaded guilty or nolo contendere to was a nonviolent offense, the person,
upon a conviction of perjury under this paragraph, shall be punished by a fine
of not more than Five Hundred Dollars ($500.00), or by imprisonment in the
county jail for not more than six (6) months, or by both such fine and
imprisonment.
(e) The covered entity may, in its discretion, allow any employee who is unable to sign the affidavit required by paragraph (d) of this subsection (5) or any employee applicant aggrieved by an employment decision under this subsection (5) to appear before the covered entity's hiring officer, or his or her designee, to show mitigating circumstances that may exist and allow the employee or employee applicant to be employed by the covered entity. The covered entity, upon report and recommendation of the hiring officer, may grant waivers for those mitigating circumstances, which shall include, but not be limited to: (i) age at which the crime was committed; (ii) circumstances surrounding the crime; (iii) length of time since the conviction and criminal history since the conviction; (iv) work history; (v) current employment and character references; and (vi) other evidence demonstrating the ability of the individual to perform the employment responsibilities competently and that the individual does not pose a threat to the health or safety of the patients of the covered entity.
(f) The licensing agency may charge the covered entity submitting the fingerprints a fee not to exceed Fifty Dollars ($50.00), which covered entity may, in its discretion, charge the same fee, or a portion thereof, to the employee applicant. Any costs incurred by a covered entity implementing this subsection (5) shall be reimbursed as an allowable cost under Section 43-13-116.
(g) If the results of an employee applicant's criminal history record check reveals no disqualifying event, then the covered entity shall, within two (2) weeks of the notification of no disqualifying event, provide the employee applicant with a notarized letter signed by the chief executive officer of the covered entity, or his or her authorized designee, confirming the employee applicant's suitability for employment based on his or her criminal history record check. An employee applicant may use that letter for a period of two (2) years from the date of the letter to seek employment with any covered entity without the necessity of an additional criminal history record check. Any covered entity presented with the letter may rely on the letter with respect to an employee applicant's criminal background and is not required for a period of two (2) years from the date of the letter to conduct or have conducted a criminal history record check as required in this subsection (5).
(h) The licensing agency, the covered entity, and their agents, officers, employees, attorneys and representatives, shall be presumed to be acting in good faith for any employment decision or action taken under this subsection (5). The presumption of good faith may be overcome by a preponderance of the evidence in any civil action. No licensing agency, covered entity, nor their agents, officers, employees, attorneys and representatives shall be held liable in any employment decision or action based in whole or in part on compliance with or attempts to comply with the requirements of this subsection (5).
(i) The licensing agency shall promulgate regulations to implement this subsection (5).
(j) The provisions of this subsection (5) shall not apply to:
(i) Applicants and employees of the University of Mississippi Medical Center for whom criminal history record checks and fingerprinting are obtained in accordance with Section 37-115-41; or
(ii) Health care professional/vocational technical students for whom criminal history record checks and fingerprinting are obtained in accordance with Section 37-29-232.
(6) The State Board of Health shall promulgate rules, regulations and standards regarding the operation of adult foster care facilities.
SECTION 8. Section 43-53-9, Mississippi Code of 1972, is amended as follows:
43-53-9. The establishment
of the Mississippi Leadership Council on Aging shall not impede the intent of
the Vulnerable * * *
Persons Act of 1986 as provided in Section 43-47-1, et seq.
SECTION 9. Section 45-33-23, Mississippi Code of 1972, is amended as follows:
45-33-23. For the purposes of this chapter, the following words shall have the meanings ascribed herein unless the context clearly requires otherwise:
(a) "Conviction" shall mean that, regarding the person's offense, there has been a determination or judgment of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere regardless of whether adjudication is withheld. "Conviction of similar offenses" includes, but is not limited to, a conviction by a federal or military tribunal, including a court-martial conducted by the Armed Forces of the United States, a conviction for an offense committed on an Indian Reservation or other federal property, a conviction in any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Marianna Islands or the United States Virgin Islands, and a conviction in a foreign country if the foreign country's judicial system is such that it satisfies minimum due process set forth in the guidelines under Section 111(5)(B) Public Law 109-248.
(b) "Jurisdiction" means any court or locality including any state court, federal court, military court, Indian tribunal or foreign court, the fifty (50) states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Marianna Islands or the United States Virgin Islands, and Indian tribes that elect to function as registration jurisdictions under Title 1, SORNA Section 127 of the Adam Walsh Child Safety Act.
(c) "Permanent residence" is defined as a place where the person abides, lodges, or resides for a period of fourteen (14) or more consecutive days.
(d) "Registration" means providing information to the appropriate agency within the time frame specified as required by this chapter.
(e) "Registration duties" means obtaining the registration information required on the form specified by the department as well as the photograph, fingerprints and biological sample of the registrant. Biological samples are to be forwarded to the State Crime Laboratory pursuant to Section 45-33-37; the photograph, fingerprints and other registration information are to be forwarded to the Department of Public Safety immediately.
(f) "Responsible agency" is defined as the person or government entity whose duty it is to obtain information from a criminal sex offender upon conviction and to transmit that information to the Mississippi Department of Public Safety.
(i) For a criminal sex offender being released from the custody of the Department of Corrections, the responsible agency is the Department of Corrections.
(ii) For a criminal sex offender being released from a county jail, the responsible agency is the sheriff of that county.
(iii) For a criminal sex offender being released from a municipal jail, the responsible agency is the police department of that municipality.
(iv) For a sex offender in the custody of youth court, the responsible agency is the youth court.
(v) For a criminal sex offender who is being placed on probation, including conditional discharge or unconditional discharge, without any sentence of incarceration, the responsible agency is the sentencing court.
(vi) For an offender who has been committed to a mental institution following an acquittal by reason of insanity, the responsible agency is the facility from which the offender is released. Specifically, the director of said facility shall notify the Department of Public Safety prior to the offender's release.
(vii) For a criminal sex offender who is being released from a jurisdiction outside this state or who has a prior conviction in another jurisdiction and who is to reside, work or attend school in this state, the responsible agency is both the sheriff of the proposed county of residence and the department.
(g) "Sex offense" or "registrable offense" means any of the following offenses:
(i) Section 97-3-53 relating to kidnapping, if the victim was below the age of eighteen (18);
(ii) Section 97-3-65 relating to rape; however, conviction or adjudication under Section 97-3-65(1)(a) when the offender was eighteen (18) years of age or younger at the time of the alleged offense, shall not be a registrable sex offense;
(iii) Section 97-3-71 relating to rape and assault with intent to ravish;
(iv) Section 97-3-95 relating to sexual battery; however, conviction or adjudication under Section 97-3-95(1)(c) when the offender was eighteen (18) years of age or younger at the time of the alleged offense, shall not be a registrable sex offense;
(v) Section 97-5-5 relating to enticing a child for concealment, prostitution or marriage;
(vi) Section 97-5-23 relating to the touching of a child, mentally defective or incapacitated person or physically helpless person for lustful purposes;
(vii) Section 97-5-27 relating to the dissemination of sexually oriented material to children;
(viii) Section 97-5-33 relating to the exploitation of children;
(ix) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;
(x) Section 97-29-59 relating to unnatural intercourse;
(xi) Section 97-1-7 relating to attempt to commit any of the above-referenced offenses;
(xii) Section 43-47-18
relating to sexual abuse of a vulnerable * * * person;
(xiii) Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor;
(xiv) Section 97-29-61(2) relating to voyeurism when the victim is a child under sixteen (16) years of age;
(xv) Section 97-29-63 relating to filming another without permission where there is an expectation of privacy;
(xvi) Section 97-29-45 relating to obscene electronic communication;
(xvii) Section 97-3-104 relating to the crime of sexual activity between law enforcement, correctional or custodial personnel and prisoners;
(xviii) Section 97-5-39(1)(c) relating to contributing to the neglect or delinquency of a child, felonious abuse or battery of a child, if the victim was sexually abused;
(xix) Any other offense resulting in a conviction in another jurisdiction which, if committed in this state, would be deemed to be such a crime without regard to its designation elsewhere;
(xx) Any offense resulting in a conviction in another jurisdiction for which registration is required in the jurisdiction where the conviction was had;
(xxi) Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this section;
(xxii) Capital murder when one (1) of the above-described offenses is the underlying crime.
(h) "Temporary residence" is defined as any place where the person abides, lodges, or resides for a period of seven (7) or more consecutive days which is not the person's permanent residence.
(i) "Department" unless otherwise specified is defined as the Mississippi Department of Public Safety.
SECTION 10. Section 45-33-36, Mississippi Code of 1972, is amended as follows:
45-33-36. (1) Upon receipt of sex offender registration or change of registration information, the Department of Public Safety shall immediately provide the information to:
(a) The National Sex Offender Registry or other appropriate databases;
(b) The sheriff of the county or any other jurisdiction where the offender resides, is an employee or is a student or intends to reside, work, attend school or volunteer;
(c) The sheriff of the county or any other jurisdiction from which or to which a change of residence, employment or student status occurs;
(d) The Department of Human Services and any other social service entities responsible for protecting minors in the child welfare system;
(e) The probation agency that is currently supervising the sex offender;
(f) Any agency responsible for conducting employment-related background checks under Section 3 of the National Child Protection Act of 1993 (42 USC 5119(a));
(g) Each school and public housing agency in each jurisdiction in which the sex offender resides, is an employee or is a student;
(h) All prosecutor offices in each jurisdiction in which the sex offender resides, is an employee, or is a student; and
(i) Any other agencies with criminal investigation, prosecution or sex offender supervision functions in each jurisdiction in which the sex offender resides, is an employee, or is a student.
(2) The Department of
Public Safety shall post changes to the public registry website within three
(3) business days. Electronic notification will be available via the Internet
to all law enforcement agencies, to any volunteer organizations in which
contact with minors or vulnerable * * * persons might occur and any
organization, company or individual who requests notification pursuant to
procedures established by the Department of Public Safety. This provision
shall take effect upon the state's receipt and implementation of the Department
of Justice software in compliance with the provisions of the Adam Walsh Act.
SECTION 11. Section 45-33-47, Mississippi Code of 1972, is amended as follows:
45-33-47. (1) A sex offender with a duty to register under Section 45-33-25 shall only be relieved of the duty under subsection (2) of this section.
(2) A person having a duty to register under Section 45-33-25 may petition the circuit court of the sentencing jurisdiction, or for a person whose duty to register arose in another jurisdiction, the county in which the registrant resides, to be relieved of that duty under the following conditions:
(a) The offender has maintained his registration in Mississippi for the required minimum registration from the most recent date of occurrence of at least one (1) of the following: release from prison, placement on parole, supervised release or probation or as determined by the offender's tier classification. Incarceration for any offense will restart the minimum registration requirement. Registration in any other jurisdiction does not reduce the minimum time requirement for maintaining registration in Mississippi.
(b) (i) Tier One requires registration for a minimum of fifteen (15) years in this state and includes any of the following listed sex offenses:
1. Section 97-5-27(1) relating to dissemination of sexually oriented material to children.
2. Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this tier.
(ii)
Notwithstanding * * *
any other provision of this section, an offender may petition the
appropriate circuit court to be relieved of the duty to register upon fifteen
(15) years' satisfaction of the requirements of this section for the
convictions classified as Tier One offenses.
(c) (i) Tier Two requires registration for a minimum of twenty-five (25) years in this state and includes any of the following listed sex offenses:
1. Section 97-5-33(3) through (9) relating to the exploitation of children;
2. Section 97-29-59 relating to unnatural intercourse;
3. Section 97-29-63, relating to filming another without permission where there is an expectation of privacy;
4. Section 97-3-104 relating to crime of sexual activity between law enforcement or correctional personnel and prisoners;
5. Section 97-29-45 relating to obscene electronic communications;
6. Section 43-47-18(2)(a) and (b) relating to gratification of lust or fondling by health care employees or persons in position of trust or authority;
7. Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this tier;
(ii)
Notwithstanding * * *
any other provision of this section, an offender may petition the
appropriate circuit court to be relieved of the duty to register upon twenty-five
(25) years' satisfaction of the requirements of this section for the
convictions classified as Tier Two offenses.
(d) Tier Three requires lifetime registration, the registrant not being eligible to be relieved of the duty to register except as otherwise provided in this paragraph, and includes any of the following listed sex offenses:
(i) Section 97-3-65 relating to rape;
(ii) Section 97-3-71 relating to rape and assault with intent to ravish;
(iii) Section 97-3-95 relating to sexual battery;
(iv) Subsection (1) or (2) of Section 97-5-33 relating to the exploitation of children;
(v) Section 97-5-41 relating to the carnal knowledge of a stepchild, adopted child or child of a cohabiting partner;
(vi) Section 97-3-53 relating to kidnapping if the victim is under the age of eighteen (18);
(vii) Section 97-3-54.1(1)(c) relating to procuring sexual servitude of a minor;
(viii) Section 97-3-54.3 relating to aiding, abetting or conspiring to violate antihuman trafficking provisions;
(ix) Section 97-5-23 relating to the touching of a child, mentally defective or incapacitated person or physically helpless person for lustful purposes;
(x) Section 97-29-3 relating to sexual intercourse between teacher and student;
(xi) Section 43-47-18
relating to sexual abuse of a vulnerable * * * person by health care employees or
persons in a position of trust or authority;
(xii) Section 97-5-39(1)(c) relating to contributing to the neglect or delinquency of a child, felonious abuse and/or battery of a child, if the victim was sexually abused;
(xiii) Capital murder when one (1) of the above described offenses is the underlying crime;
(xiv) Any conviction for violation of a similar law of another jurisdiction or designation as a sexual predator in another jurisdiction;
(xv) Any conviction of conspiracy to commit, accessory to commission, or attempt to commit any offense listed in this tier; or
(xvi) A first-time offender fourteen (14) years of age or older adjudicated delinquent in a youth court for the crime of rape pursuant to Section 96-3-65, or sexual battery pursuant to Section 97-3-95, is subject to lifetime registration but shall be eligible to petition to be relieved of the duty to register after twenty-five (25) years of registration.
(e) An offender who has two (2) separate convictions for any of the offenses described in Section 45-33-23 is subject to lifetime registration and shall not be eligible to petition to be relieved of the duty to register as long as at least one (1) of the convictions was entered on or after July 1, 1995.
(f) An offender, twenty-one (21) years of age or older, who is convicted of any sex offense where the victim was fourteen (14) years of age or younger shall be subject to lifetime registration and shall not be relieved of the duty to register.
(g) A first-time offender fourteen (14) years of age or older adjudicated delinquent in a youth court for the crime of rape pursuant to Section 96-3-65 or sexual battery pursuant to Section 97-3-95 is subject to lifetime registration and shall be eligible to petition to be relieved of the duty to register after twenty-five (25) years of registration.
(h) Registration following arrest or arraignment for failure to register is not a defense and does not relieve the sex offender of criminal liability for failure to register.
(i) The department shall continue to list in the registry the name and registration information of all registrants who no longer work, reside or attend school in this state even after the registrant moves to another jurisdiction and registers in the new jurisdiction as required by law. The registry shall note that the registrant moved out of state.
(3) In determining whether to release an offender from the obligation to register, the court shall consider the nature of the registrable offense committed and the criminal and relevant noncriminal behavior of the petitioner both before and after conviction. The court may relieve the offender of the duty to register only if the petitioner shows, by clear and convincing evidence, that the registrant properly maintained his registration as required by law and that future registration of the petitioner will not serve the purposes of this chapter and the court is otherwise satisfied that the petitioner is not a current or potential threat to public safety. The district attorney in the circuit in which the petition is filed must be given notice of the petition at least three (3) weeks before the hearing on the matter. The district attorney may present evidence in opposition to the requested relief or may otherwise demonstrate the reasons why the petition should be denied. If the court denies the petition, the petitioner may not again petition the court for relief until one (1) year has elapsed unless the court orders otherwise in its order of denial of relief.
(4) The offender will be required to continue registration for any sex offense conviction unless the conviction is set aside in any post-conviction proceeding, the offender receives a pardon, the charge is dismissed or the offender has received a court order pursuant to this section relieving him of the duty to register. Upon submission of the appropriate documentation to the department of one (1) of these occurrences, registration duties will be discontinued.
SECTION 12. Section 45-39-13, Mississippi Code of 1972, is amended as follows:
45-39-13. The establishment
of any Crime Stoppers Advisory Council shall not impede the intent or process
of the Vulnerable * * * Persons Acts of 1986 as provided in Section 43-47-1 et
seq.
SECTION 13. Section 47-7-3, Mississippi Code of 1972, is amended as follows:
47-7-3. (1) Every prisoner who has been convicted of any offense against the State of Mississippi, and is confined in the execution of a judgment of such conviction in the Mississippi Department of Corrections for a definite term or terms of one (1) year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of the department, and who has served not less than one-fourth (1/4) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided, except that:
(a) No prisoner convicted as a confirmed and habitual criminal under the provisions of Sections 99-19-81 through 99-19-87 shall be eligible for parole;
(b) Any person who shall have been convicted of a sex crime shall not be released on parole except for a person under the age of nineteen (19) who has been convicted under Section 97-3-67;
(c) No one shall be eligible for parole until he shall have served one (1) year of his sentence, unless such person has accrued any meritorious earned-time allowances, in which case he shall be eligible for parole if he has served (i) nine (9) months of his sentence or sentences, when his sentence or sentences is two (2) years or less; (ii) ten (10) months of his sentence or sentences when his sentence or sentences is more than two (2) years but no more than five (5) years; and (iii) one (1) year of his sentence or sentences when his sentence or sentences is more than five (5) years;
(d) (i) No person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person. If such person is sentenced to a term or terms of ten (10) years or less, then such person shall not be eligible for parole. The provisions of this paragraph (d)(i) shall also apply to any person who shall commit robbery or attempted robbery on or after July 1, 1982, through the display of a deadly weapon. This paragraph (d)(i) shall not apply to persons convicted after September 30, 1994;
(ii) No person shall be eligible for parole who shall, on or after October 1, 1994, be convicted of robbery, attempted robbery or carjacking as provided in Section 97-3-115 et seq., through the display of a firearm or drive-by shooting as provided in Section 97-3-109. The provisions of this paragraph (d)(ii) shall also apply to any person who shall commit robbery, attempted robbery, carjacking or a drive-by shooting on or after October 1, 1994, through the display of a deadly weapon;
(e) No person shall be eligible for parole who, on or after July 1, 1994, is charged, tried, convicted and sentenced to life imprisonment without eligibility for parole under the provisions of Section 99-19-101;
(f) No person shall be eligible for parole who is charged, tried, convicted and sentenced to life imprisonment under the provisions of Section 99-19-101;
(g) Notwithstanding the provisions of subsection (1)(c), a person who is convicted of aggravated domestic violence shall not be eligible for parole until he shall have served one (1) year of his sentence;
(h) No person shall be
eligible for parole who is convicted or whose suspended sentence is revoked
after June 30, 1995, except that an offender convicted of only nonviolent
crimes after June 30, 1995, may be eligible for parole if the offender meets
the requirements in subsection (1) and this paragraph. In addition to other
requirements, if an offender is convicted of a drug or driving under the
influence felony, the offender must complete a drug and alcohol rehabilitation
program prior to parole or the offender may be required to complete a post-release
drug and alcohol program as a condition of parole. For purposes of this paragraph,
"nonviolent crime" means a felony other than homicide, robbery,
manslaughter, sex crimes, arson, burglary of an occupied dwelling, aggravated
assault, kidnapping, felonious abuse of vulnerable * * * persons, felonies with enhanced
penalties, the sale or manufacture of a controlled substance under the Uniform
Controlled Substances Law, felony child abuse, or exploitation or any crime
under Section 97-5-33 or Section 97-5-39(2) or 97-5-39(1)(b), 97-5-39(1)(c) or
a violation of Section 63-11-30(5). An offender convicted of a violation under
Section 41-29-139(a), not exceeding the amounts specified under Section 41-29-139(b),
may be eligible for parole. In addition, an offender incarcerated for
committing the crime of possession of a controlled substance under the Uniform
Controlled Substances Law after July 1, 1995, shall be eligible for parole.
(2) Notwithstanding any other provision of law, an inmate shall not be eligible to receive earned time, good time or any other administrative reduction of time which shall reduce the time necessary to be served for parole eligibility as provided in subsection (1) of this section; however, this subsection shall not apply to the advancement of parole eligibility dates pursuant to the Prison Overcrowding Emergency Powers Act. Moreover, meritorious earned-time allowances may be used to reduce the time necessary to be served for parole eligibility as provided in paragraph (c) of subsection (1) of this section.
(3) The State Parole Board shall, by rules and regulations, establish a method of determining a tentative parole hearing date for each eligible offender taken into the custody of the Department of Corrections. The tentative parole hearing date shall be determined within ninety (90) days after the department has assumed custody of the offender. Such tentative parole hearing date shall be calculated by a formula taking into account the offender's age upon first commitment, number of prior incarcerations, prior probation or parole failures, the severity and the violence of the offense committed, employment history, whether the offender served in the United States Armed Forces and has an honorable discharge, and other criteria which in the opinion of the board tend to validly and reliably predict the length of incarceration necessary before the offender can be successfully paroled.
(4) Any inmate within twenty-four (24) months of his parole eligibility date and who meets the criteria established by the classification board shall receive priority for placement in any educational development and job-training programs. Any inmate refusing to participate in an educational development or job-training program may be ineligible for parole.
SECTION 14. Section 97-3-7, Mississippi Code of 1972, is amended as follows:
97-3-7. (1) (a) A person is guilty of simple assault if he (i) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; (ii) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.
(b) However, a person
convicted of simple assault (i) upon a statewide elected official, law
enforcement officer, fireman, emergency medical personnel, public health
personnel, social worker or family protection specialist or family protection
worker employed by the Department of Human Services or another agency, youth
detention center personnel, training school juvenile care worker, any county or
municipal jail officer, superintendent, principal, teacher or other
instructional personnel, school attendance officer, school bus driver, or a
judge of a circuit, chancery, county, justice, municipal or youth court or a
judge of the Court of Appeals or a justice of the Supreme Court, district
attorney, legal assistant to a district attorney, county prosecutor, municipal
prosecutor, court reporter employed by a court, court administrator, clerk or
deputy clerk of the court, or public defender, while such statewide elected
official, judge or justice, law enforcement officer, fireman, emergency medical
personnel, public health personnel, social worker, family protection
specialist, family protection worker, youth detention center personnel,
training school juvenile care worker, any county or municipal jail officer,
superintendent, principal, teacher or other instructional personnel, school
attendance officer, school bus driver, district attorney, legal assistant to a
district attorney, county prosecutor, municipal prosecutor, court reporter
employed by a court, court administrator, clerk or deputy clerk of the court,
or public defender is acting within the scope of his duty, office or
employment; (ii) upon a legislator while the Legislature is in regular or
extraordinary session or while otherwise acting within the scope of his duty,
office or employment; or (iii) upon a person who is sixty-five (65) years of
age or older or a person who is a vulnerable * * * person, as defined in Section 43-47-5,
shall be punished by a fine of not more than One Thousand Dollars ($1,000.00)
or by imprisonment for not more than five (5) years, or both.
(2) (a) A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (iii) causes any injury to a child who is in the process of boarding or exiting a school bus in the course of a violation of Section 63-3-615; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.
(b) However, a person
convicted of aggravated assault (i) upon a statewide elected official, law
enforcement officer, fireman, emergency medical personnel, public health
personnel, social worker, family protection specialist, family protection
worker employed by the Department of Human Services or another agency, youth
detention center personnel, training school juvenile care worker, any county or
municipal jail officer, superintendent, principal, teacher or other
instructional personnel, school attendance officer, school bus driver, or a
judge of a circuit, chancery, county, justice, municipal or youth court or a
judge of the Court of Appeals or a justice of the Supreme Court, district
attorney, legal assistant to a district attorney, county prosecutor, municipal
prosecutor, court reporter employed by a court, court administrator, clerk or
deputy clerk of the court, or public defender, while such statewide elected
official, judge or justice, law enforcement officer, fireman, emergency medical
personnel, public health personnel, social worker, family protection
specialist, family protection worker, youth detention center personnel,
training school juvenile care worker, any county or municipal jail officer,
superintendent, principal, teacher or other instructional personnel, school
attendance officer, school bus driver, district attorney, legal assistant to a
district attorney, county prosecutor, municipal prosecutor, court reporter
employed by a court, court administrator, clerk or deputy clerk of the court,
or public defender is acting within the scope of his duty, office or
employment; (ii) upon a legislator while the Legislature is in regular or
extraordinary session or while otherwise acting within the scope of his duty,
office or employment; or (iii) upon a person who is sixty-five (65) years of
age or older or a person who is a vulnerable * * * person, as defined in Section 43-47-5,
shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00)
or by imprisonment for not more than thirty (30) years, or both.
(3) A person is guilty of simple domestic violence who commits simple assault as described in subsection (1) of this section against a current or former spouse of the defendant or a child of that person, a person living as a spouse or who formerly lived as a spouse with the defendant or a child of that person, a parent, grandparent, child, grandchild or someone similarly situated to the defendant, a person who has a current or former dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child and, upon conviction, the defendant shall be punished as provided under subsection (1) of this section; however, upon a third or subsequent conviction of simple domestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment not less than five (5) nor more than ten (10) years. In sentencing, the court shall consider as an aggravating factor whether the crime was committed in the physical presence or hearing of a child under sixteen (16) years of age who was, at the time of the offense, living within either the residence of the victim, the residence of the perpetrator, or the residence where the offense occurred.
(4) A person is guilty of aggravated domestic violence who commits aggravated assault as described in subsection (2) of this section against, or who strangles, or attempts to strangle, a current or former spouse of the defendant or a child of that person, a person living as a spouse or who formerly lived as a spouse with the defendant or a child of that person, a parent, grandparent, child, grandchild or someone similarly situated to the defendant, a person who has a current or former dating relationship with the defendant, or a person with whom the defendant has had a biological or legally adopted child. Upon conviction, the defendant shall be punished by imprisonment in the custody of the Department of Corrections for not less than two (2) years nor more than twenty (20) years; however, upon a third or subsequent conviction of aggravated domestic violence, whether against the same or another victim and within five (5) years, the defendant shall be guilty of a felony and sentenced to a term of imprisonment of not less than ten (10) nor more than twenty (20) years. In sentencing, the court shall consider as an aggravating factor whether the crime was committed in the physical presence or hearing of a child under sixteen (16) years of age who was, at the time of the offense, living within either the residence of the victim, the residence of the perpetrator, or the residence where the offense occurred. Reasonable discipline of a child, such as spanking, is not an offense under this subsection (4). A person convicted of aggravated domestic violence shall not be eligible for parole under the provisions of Section 47-7-3(1)(c) until he shall have served one (1) year of his sentence.
For the purposes of this section, "strangle" means to restrict the flow of oxygen or blood by intentionally applying pressure on the neck or throat of another person by any means or to intentionally block the nose or mouth of another person by any means.
(5) "Dating relationship" means a social relationship as defined in Section 93-21-3.
(6) Every conviction of domestic violence may require as a condition of any suspended sentence that the defendant participate in counseling or treatment to bring about the cessation of domestic abuse. The defendant may be required to pay all or part of the cost of the counseling or treatment, in the discretion of the court.
(7) When investigating allegations of a violation of subsection (3) or (4) of this section, law enforcement officers shall utilize the form prescribed for such purposes by the Office of the Attorney General in consultation with the sheriff's and police chief's associations. However, failure of law enforcement to utilize the uniform offense report shall not be a defense to a crime charged under subsection (3) or (4) of this section.
(8) In any conviction of assault as described in any subsection of this section which arises from an incident of domestic violence, the sentencing order shall include the designation "domestic violence." The court clerk shall enter the disposition of the matter into the corresponding uniform offense report.
SECTION 15. This act shall take effect and be in force from and after its passage.